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TMI Blog2015 (6) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... fication dated 13.4.1964, issued under the provisions of Mysore Land Acquisition Act, 1884. And also to declare that a judgment and decree passed in civil suit bearing O.S. No. 554/1981, by the court of the 17th Additional City Civil Judge, Bangalore, dated 25.9.1992, as not binding the plaintiff, BDA. And for injunctory reliefs restraining defendants No. 1 to 7 from interfering with the said property. 3. It was the case of the plaintiff that before its constitution in the year 1976, its predecessor-m-interest was the City Improvement Trust Board, (hereinafter referred to as 'the CITB', for brevity), also a statutory body which was engaged in the planned development of Bangalore City. It was stated that in order to form and establish an Industrial layout, known as Industrial Suburb, II Stage, it was proposed to acquire lands situated around Jharakabandekaval, Yelahanka, Bangalore North taluk, including the land bearing survey No. 10/17. A notification dated 13.4.1964 was said to have been issued under the provisions of the Mysore Land Acquisition Act, 1988, (Hereinafter referred to as 'the MLA Act', for brevity). According to the revenue records, the said land be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sons, namely (late) Mahadevan and Defendant No. 7, are said to have filed a civil suit in O.S. 554/1981 on the file of the 17th Additional City Civil Judge, Bangalore, seeking a declaratory relief, to the effect that they were the absolute owners of the very same suit property as was involved in the present suit, in view of the State having withdrawn from the acquisition proceedings, as claimed by the plaintiffs therein. Consequently, they had sought injunctory reliefs against Narayana Raju, who was admittedly in possession and had also put up construction over the suit property, as an allottee of an industrial site, claiming under the present plaintiff, the BDA. Significantly, the BDA was not a party to the said suit. However, the said suit was said to have been decreed in favour of Mumyamma and defendant No. 7 herein, as on 25.9.1992. As against the above said judgment and decree, late Narayana Raju is said to have preferred an appeal before this court in RFA 73/1993. The same is said to have been dismissed as on 7.4.1999. Subsequently, defendants 8 to 10, as the legal representatives of late Narayana Raju, are said to have preferred a Review Petition in C.P. 683/1999, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/17. On the other hand it was said that the site No. 86/G was to be found located in land bearing survey No. 10/4. It was pointed out that this very question had been addressed in the earlier suit in O.S. No. 554/1981. And that this very court had held that site No. 86/G was situated in land bearing Sy. No. 10/4 and that this factum had also been confirmed by the Supreme Court of India. And it was asserted that the CITB had never acquired the land bearing survey No. 10/17 and that the present suit was nothing but a ruse to lay claim over the same. It was contended that though the preliminary and final notifications for acquisition of the land in question had been issued, physical possession had never been taken, either by the erstwhile CITB or the plaintiff, from Smt. Muniyamma or Radhakrishna, who was said to be the son of Muniyamma. In other words, it was sought to be emphasized that neither Muniyamma nor her successors-m - interest, had been divested of the property. It was alleged that in the year 1981, Narayana Raju who was claiming to be an allottee of an industrial site bearing No. 86/G, under the BDA, is said to have trespassed on land bearing survey No. 10/17 and havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that there is interference to its possession by defendants 1 to 7? 4. Whether the plaintiff proves that it is entitled for the relief claimed in the suit? 5. To what deem or order? Additional Issues: 1. Whether suit filed by the plaintiff is hit by principles of constructive res-judicata? 2. Whether suit of the plaintiff is hit by principles of estoppels, acquiescence and waiver? 3. Whether suit is barred by law of limitation?" The trial court has answered Issue Nos. 1 to 4 in the negative, Additional Issue Nos. 1 to 3 in the affirmative and Issue No. 5 as per the final order and has dismissed the suit. It is that which is under challenge in the present appeals. 5. The learned Senior Advocate Shri K.M. Nataraj, appearing for the counsel for the plaintiff - appellant, contends as follows: That the trial court had failed to notice that the suit in O.S. No. 554/1981 was not maintainable. Firstly, it is pointed out that there was no denial of the fact that the suit schedule property was subject matter of acquisition proceedings. The validity or otherwise of the same having been concluded in accordance with law, could not have been tested, even incidentally, in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents in O.S. 554/1981 being declared as not binding the BDA, would hardly result in the BDA establishing title to the property. It is contended that even assuming that the land in question had been notified for acquisition under the MLA Act, there is material on record to indicate that the compensation amount has not been paid to the land owner and has possibly remained in a revenue deposit, or even withdrawn by the acquiring authority, going by certain exchange of correspondence on record. Further, with the coming in to force of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter referred to as 'the 2013 Act', for brevity) in terms of Section 24 thereof, the acquisition proceedings have lapsed and are no longer relevant. It is further contended that the acquisition proceedings even if could be presumed to be unassailable before a civil court, on the footing that the Land Acquisition Act, 1894, was a self contained Code and hence the jurisdiction of the civil court was barred, such a bar however, would not have applied to land which was not the subject matter of acquisition - but was mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to address the validity of the acquisition proceedings had never arisen for consideration at any stage of that suit. Therefore, it is contended that the trial court had remained oblivious to the lack of jurisdiction in the earlier instance and so also has the trial court, in the present instance, failed to address the grievance of the plaintiff that the concluded acquisition proceedings, in respect of the suit schedule property, has been set at naught, by virtue of the judgment in O.S. 554/1981 which was rendered by the trial court, wholly without jurisdiction. The contention that there was a serious discrepancy in the allottee having been put in possession of land bearing No. 10/17 when what was acquired was land bearing survey No. 10/4 is also not material. The lands bearing Survey Nos. 10/4, 10/14 & 10/17 of Jharakabande Kaval had been acquired. Hence it was immaterial even if the allottee had been put in possession of one or the other portion of the land, after the said lands had been formed into an industrial layout. Further, sustenance sought to be drawn from Section 38-C of the BDA Act, is also misplaced as the said Section is also subject to the acquisition proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to represent the BDA, though claiming under the BDA as a mere lessee in occupation of the land in question. The trial court has also proceeded on the presumption that the BDA was adequately represented in the earlier proceedings, as two its officials had appeared before the court to depose in respect of certain documents produced on behalf of the BDA, pursuant to witness summonses issued and hence any decree passed against the defendant therein was also binding against the BDA. The trial court, in the first instance, in OS 554/1981, and in the present case has proceeded on a misconception that the defendant allottee had been conferred the entire right, title and interest in the subject property by the BDA, in order that any decree passed against such allottee would also bind the BDA. When it is sought to be alleged that the defendant in the earlier suit was a privy of the BDA and therefore any finding suffered by the privy would bind the principal, should also be read with the qualification that the test of res judicata is the identity of title in the two litigations and the identity of the actual property involved in the two cases. The defendant in the earlier proceedings was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the lands continued to remain with the plaintiffs and the Board ceased to have jurisdiction and the schedule lands remain an agricultural lands "as it is and where it was". The Photostat copy of Gazette notification is document No. 6 (Six) and the endorsement of the said Board are document Nos. 7 and 8 (Seven and Eight)." It is further claimed that during the second week of October 1980, the plaintiffs had noticed structures having been put up by the defendant and that there was a poultry farm and that the defendant had occupied the land in question. That they had then learnt that he was said to be an allottee who had been put in possession under a Lease deed. According to the plaintiffs - this was not possible as the acquisition proceedings had not been completed and on the other hand, the land in question had been denotified. Hence the suit. The reliefs claimed were, for a declaration that the plaintiffs are the absolute owners of the suit property and for recovery of possession and other reliefs. The sole defendant had denied that the land in question was de-notified or with drawn from the acquisition proceedings and contended as follows : "2. xxx xxx xxx It is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was taken by the C.I.T.B., after passing the award. It could not be in continuous possession of the plaintiffs. This is invented for the purpose of this suit. 4. The defendant submits that in pursuance of the allotment made in his favour, he has been put in possession and has put up constructions on the property in question and he cannot be prevented from putting up further constructions. The plaintiffs have no right whatever to question the defendant to carry on any construction work. The plaintiffs have deliberately come forward with this suit making false and frivolous allegations and attempting to course the defendant to terms if possible. But their attempt having failed, still they are persisting in their attempts by filing an application/before this Hon'ble Court and praying for an order of injunction, stating that the defendant is in unlawful possession of the property. The defendant submit that the suit is not maintainable as the property has been acquired and taken possession of and the relief claimed for by the plaintiffs is not available to them. The suit is also not maintainable as the City Improvement Trust Board which acquired the property and which bad allott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided is whether the property has been acquired and subsequently there has been a denotification?. Under Ex. D. 8, the register of lands notified and acquired for public purposes and compensation paid therefore, the entries as against Chikkavenkatappa in respect of Sy. No. 10/17, there is an entry which reads as "denotified vide No. HMA/37/MNJ/69 dated 2.3.1970." Narasimhappa also in respect of the Sy. No. 10/18, there is an endorsement of denotification having the same No. HMA/37/MNJ/69. dated 2.3.1970. The entire resistance of the defendants come on the ground that the land has been acquired and the acquired land has been handed over to him. It is the case of the plaintiff that de-notification has taken place and in view of the de-notification, the defendant cannot have any right over the same at all. 10. "The trial court gave a finding that no possession has been taken and therefore, the Court held that in as much as there is no proof that the authorities have taken possession of the land in question before the issuance of notification dated 13.4.1964 and withdrawn the acquisition on 2.3.1970, the plaintiffs rights continues with him." Relying upon the above decision, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face of the record, desires to obtain a review of the decree passed or order made against him, to apply for a review of judgment to the Court which passed the decree or made the order. Power of review, therefore, is limited and confined subject to the aforesaid conditions. In the present case the learned Judge which dismissed the appeal of the defendants on merits on 7.4.1999 allowed the review application by appreciating the entire evidence on record as if the Judge was sitting as an appellate court, which is not permissible under the law. While disposing of the appeal the learned Judge also recorded that the land in question was throughout in the possession of the plaintiffs. However, in review application the same finding has been reversed which is not permissible in the review application. Suffice it to say that in the regular appeal the learned Judge has clearly recorded the admission of the defendants that the land allotted to the defendants was in Survey No. 10/4. Having recorded the finding at the admission of the defendants, sitting in a review, the learned Judge has also allotted the Survey No. 10/17, the same land which was allotted and was in the ownership of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or the apex court. Point (c) : The suit in OS 554/1981 has attained finality with the matter reaching the apex court and on disposal of the appeals in Civil Appeal No. 8901-8902/2001 by order dated 15.02.2008. The present suit having been filed immediately thereafter, was certainly maintainable. It may be that in a proceeding, as between parties who were before the apex court, even if erroneous findings have been arrived at and affirmed, such parties would not be in a position to re-open the matter on other and more relevant material, albeit neither considered or brought to the attention of the court. But that embargo would not apply to one who was not a party to the earlier proceeding and is in a position to demonstrate that there were legal impediments to the very maintainability of the suit, apart from demonstrating that he is the party actually affected. As is the BDA, in the present circumstances. Point (d) : The finding against the BDA, that the suit was barred by limitation is not tenable. The cause of action it may be said has arisen only when the judgment and decree in OS 554/1981 attained finality before the apex court, as aforesaid, and hence the suit filed immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on point B. Point B is said to pass sub silentio. In Gerard v. Worth of Paris Ltd. (1936) 2 AllER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs. Bremith Ltd.( 1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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